Legal Interpretations
Pasternack 2013
Summary
The Question
Is a pilot hired to perform a safety-sensitive function subject to random drug testing while not current and so not immediately able to perform that function?
Background
A physician asked which safety-sensitive employees are subject to random drug testing and whether the definition of performing in 14 CFR 120.7(k) limits it, raising issues with the FAA's 2013 Mayo interpretation.
The FAA’s Interpretation
Yes. The FAA reaffirmed its Mayo interpretation that the 14 CFR 120.7(k) definition of performing does not apply to random drug testing. Unlike alcohol, prohibited drugs are illegal and their use is never permitted, so employees hired to perform safety-sensitive functions are subject to random drug testing whether or not they are performing those functions when selected, including a pilot whose currency has lapsed.
- Requester
- Pasternack
- Issued
- September 18, 2013
- Subject
- Drug & Alcohol Testing
Regulations Cited
- 14 CFR 120.7
Unreadable text from the scan (such as a barcode or stamp) is left out of the text below; the original letter shows it exactly.
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U.S. Deportment
of Transportation
Federal Aviation
Administration
SEP 18 2013
Mr. Fred L. Pasternack, M.D.
Dear Dr. Pasternack;
Office of the Chief Counsel 800 Independence Ave .. S.W.
Washington, D.C. 20591
This is in response to your letter of May 6. 2013, requesting an interpretation of which safety-sensitive employees are subject to random drug testing, and what, if any, limitations there are on random drug testing based on the definition of performing as found in 14 C.F.R. § 120.7(k).
As you noted in your letter, our letter to Nancy Mayo from Rebecca MacPherson, April 19, 2013, states that the definition ofperfonning found in§ 120.7(k) does not apply to random drug testing. This is because alcohol is a legal substance the use of which is prohibited by regulation only within prescribed periods related to an employee performing a safety-sensitive function. Drugs, however, that are prohibited under the regulations are illegal under federal law and their use by an employee responsible for safety-sensitive functions is never permitted. Thus employees hired to perform a safety-sensitive function are subject to random drug testing regardless of whether they happen to be performing their safety-sensitive functions at the time they are selected for a random drug test. Consequently, a pilot, who is an employee hired to perform a safety-sensitive function for an aviation employer as defined by the regulations, is subject to random drug testing even if that pilot is not immediately available to perform the safety-sensitive function due to a lapse in currency. We have reviewed the Mayo interpretation, in light of the issues you raise in your letter, but none of those issues change our interpretation. Therefore, this letter reaffinns the Mayo interpretation.
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We hope this response is helpful to you. If you have additional questions regarding this matter, please contact my staff at (202) 267-3073. This response was prepared by Neal O'Hara, an attorney in the International Law, Legislation, and Regulations Division of the Office of the Chief Counsel, and was coordinated with the Enforcement Division of the Office of the Chief Counsel.
Acting Assistant Chief\Counsel for International Law,
Legislation, and Regulations, AGC-200
Snapshot retrieved August 6, 2026.